News from the Federal Circuit: On August 8, 2016, the U.S. Court of Appeals for the Federal Circuit granted the Department of Justice’s motion for en banc rehearing in Parkinson v. Dept. of Justice, No. 2015-3066. The court vacated the panel’s decision below, and now the entire Federal Circuit will decide on the scope of whistleblower reprisal protections for FBI employees.
FBI employees are not normally covered by the whistleblower protections of 5 U.S.C. § 2302(b)(8), which are overseen by the U.S. Office of Special Counsel and the Merit Systems Protection Board. Instead, FBI employees’ whistleblower reprisal complaints are heard by a separate whistleblower reprisal complaint system managed by the Department of Justice under 5 U.S.C. § 2303. As reported by the Government Accountability Office (GAO) in 2015, this FBI complaint system has had problems, including with claim dismissals and processing of cases taking as much as 10 years. The only FBI employees who have the ability to directly appeal adverse actions to the MSPB are “preference eligible” veterans, under 5 U.S.C. § 7511(b)(8). Individuals with MSPB appeal rights can raise affirmative defenses in their appeals, including defenses of whistleblower reprisal and violations of USERRA. At issue in Parkinson is whether FBI preference eligible employees may raise USERRA and whistleblower reprisal defenses in adverse action cases.
The 3-member panel of the Federal Circuit had issued a 2-1 split decision on this issue. Relying on a textual analysis of the relevant statutes, all three members of the panel held that USERRA affirmative defenses were barred by explicit statutory language. However, the panel majority held that the specific statutory language allowed FBI preference eligible employees to raise whistleblower reprisal affirmative defenses in adverse action appeals; Judge Taranto issued a partial dissent coming to the opposite conclusion on the whistleblower reprisal issue.
With en banc rehearing, the panel’s decision is vacated, and all the judges of the Federal Circuit will jointly re-decide the issue of whether or not FBI preference eligible employees can raise whistleblower reprisal affirmative defenses in MSPB appeals. Given the rarity of federal personnel issues reaching the Supreme Court, the en banc decision is likely to be the final word on this issue absent action by Congress. The court has also invited amicus curiae briefs from the public.